Obama nominates one insider, one outsider for top patent court

President Barack Obama has nominated two longtime government attorneys to the US Court of Appeals for the Federal Circuit (CAFC), the nation's top patent court. One of them, Raymond Chen, has been a lawyer at the US Patent and Trademark Office (USPTO) since 1998. The other, Todd Hughes, is more of a wildcard in the patent field. His background is doing commercial litigation at the Department of Justice, where he has been since 1994.

Chen has argued some of the key patent cases on behalf of the USPTO, including In re Bilksi, in which he more or less urged the Federal Circuit to dodge the issue of when computer and software-related inventions became too abstract to get patents.

The nomination of a longtime patent office insider would seem to be good news for patent-system supporters and bad news for reformers, but even the Patent Office's views about things like software patents seems to be changing. On Friday, the Federal Circuit held an en banc (full-court) argument about a key software patent case, CLS Bank v. Alice Corp. In that case, a PTO lawyer argued software itself shouldn't be patent eligible, and that patents merely claiming software connected to a general-purpose computer probably can't survive either. (Chen didn't argue that case himself, since his nomination had been announced the day before.)

If confirmed, Hughes would be the first openly gay judge on a US appeals court. That background seems to be part of Obama's selection process for this position. He previously nominated another openly gay attorney, Edward DuMont, for a spot on the Federal Circuit, but DuMont withdrew his nomination after waiting more than 18 months for a hearing.

A third position on the 12-person court remains unfilled. After DuMont gave up, Obama nominated Richard Taranto to the open position, but Congress didn't act on that nomination either. Taranto was one of 33 federal judicial nominees that Obama re-nominated in January, and he is still awaiting a hearing after 15 months.

36 Reader Comments

Out of curiosity, is there any kind of limit on how long Congress can put off a hearing for these nominations, or can they pretty much drag their feet until it becomes irrelevant? Or is there some alternative means to force the issue?

I don't really care so much about the nominee's sexual orientation (although I guess it's good for diversity's sake) as much as I hope he understands that software patents are totally bogus.

Also it's pretty funny how House and Senate Republicans are continuing to attempt to block anything President Obama does, as if their obstructionism (might even call it sabotage) weren't totally obvious. Frikkin' goons, the whole bunch of them

Both seem like interesting and informed picks. I also agree with the attempt at diversity, provided qualifications are the same. Diversity in appointments is a great way to help improve services offered by having judges who represent the community they serve. Having a gay justice(or a black, hispanic, female, etc) helps raise confidence in the system for those who are part of those sub-groups, at the least they know that their status as a protected class is not as likely to be held against them in a decision, and that they have someone who would call it out if it were.

The Court of Appeals for the Federal Circuit doesn't just hear patent appeals. Despite not having experience with patents, Hughes appears to have considerable experience with other types of matters (VA affairs, ITC appeals, gov't contract claims, fed. employee claims, among others) that come before the CAFC.

as a conservative myself, i have no issues with diversity, and i agree that sexual orientation shouldn't have any bearing on a patent judge's job. reflex-croft said it well above - as long as they were equally qualified individuals, then sure, mix it up a little.

Taranto was reported out of committee last Thursday, the same day as the two new nominations, so his confirmation vote is pending before the whole Senate (I'm not sure when the vote is on the Senate calendar). I don't know if he received another hearing, but it certainly didn't seem necessary since he had already passed out of committee in the last Congress.

Also worth noting, Chen has a EE from UCLA, so his technical background is solid for dealing with and understanding business method patents. This would make up for the retirement of Senior Judge Gajarsa who also had a EE degree from back in the day.

I don't really care so much about the nominee's sexual orientation (although I guess it's good for diversity's sake) as much as I hope he understands that software patents are totally bogus.

I fail to understand how the sexual orientation of the person is relevant.. Bring me the BEST candidate. I don't care who he/she is sleeping with. I find it just as wrong to hire someone because they are gay as to deny them employment because they are gay. In each case you are denying the perceived "Best" candidate the job because of their sexual orientation (one straight, one gay). I say perceived best because you never know for sure you have the optimal.

What bearing does someone's sexual orientation have on whether or not they are fit to be on a patent appeals court?

My question exactly. If his sexual orientation was of any importance in his being chosen, then I say "Nay, Nay!" I'm sick of affirmative action for affirmative action's sake. Put the best qualified person in, PERIOD. I don't care if that's a man, woman, hermaphrodite, or Cartman's mom. I don't care if they're gay, straight, or trapezoid. I don't care if they are white, black, yellow, tan, brown, red, pink, orangish, green, blue, polka dot, or crystal clear.

I want the BEST candidate, not the most "First ever [insert some subset of humanity] to be nominated!" That's just wrong.

Both seem like interesting and informed picks. I also agree with the attempt at diversity, provided qualifications are the same. Diversity in appointments is a great way to help improve services offered by having judges who represent the community they serve. Having a gay justice(or a black, hispanic, female, etc) helps raise confidence in the system for those who are part of those sub-groups, at the least they know that their status as a protected class is not as likely to be held against them in a decision, and that they have someone who would call it out if it were.

In which case you are saying "Discriminate all you want against that WASP dude over there". Affirmative Action for Affirmative Action's sake is WRONG. It's just as bad to discriminate FOR someone as AGAINST someone. Choose the best candidate, PERIOD, without regard to race, color, gender, religion, sexual orientation, age, political persuasion, etc.

There are many, many factors that go into selecting a Federal judicial nominee, not the least of which is "can this person be confirmed?" But I think that there is rarely any one "BEST" candidate; there are candidates with pros and cons and you find a balance. The fact that Hughes has no patent background is cause for several in the patent community to scream bloody murder that he is completely unqualified. On the other hand, I'm sure there are plenty of Veterans Affairs lawyers who are glad that the President isn't ignoring the importance of their appeals that also go to the Federal Circuit.

In line with that, I think having additional perspectives on a Court adds to the overall competency of the bench. Were there qualified male judges who could have been nominated instead of Sandra Day O'Connor? Sure, in particular either Richard Posner or Frank Easterbrook from the 7th Circuit would have been excellent choices for Reagan to pick, and one could reasonably argue either one of them was the "best candidate" at the time. Except they weren't, because the addition of a woman to the Supreme Court meant that the Supreme Court became more representative of the population, and added a perspective and insights that traditionally were not present on that bench. The fact that O'Connor was a woman was a factor that made her appealing as a nominee.

So, when I see someone like Hughes nominated, I give him the benefit of the doubt that he has met the (high) bar of qualifications, because all potential nominees must. His being openly gay may be irrelevant given his extensive experience in VA, ITC, and government contract work. Or, as opposed to being discrimination, his being openly gay may be a positive factor where the President wants such understanding and perspective on the Federal bench.

Now, I'll grant that given the jurisdiction of the Federal Circuit, there are probably few instances where Hughes' sexual orientation will have much bearing at all on his evaluation of a case. But this comes back to the "can this person be confirmed?" question. If nominated to any of the other Circuit Courts, where he might hear cases on matters of civil rights, or possibly even family law issues, then socially reactionary Senators might filibuster him for the next 4 years, because heaven forbid a gay man have any decision-making authority on such an appeal. So instead, openly gay and lesbian nominees slowly get seats on the Federal Circuit, and on District Courts, and gradually the social opposition softens, and eventually some President down the road can nominate the BEST nominee to a Court, and not be afraid the nomination will fail just because the nominee happens to be a homosexual.

Both seem like interesting and informed picks. I also agree with the attempt at diversity, provided qualifications are the same. Diversity in appointments is a great way to help improve services offered by having judges who represent the community they serve. Having a gay justice(or a black, hispanic, female, etc) helps raise confidence in the system for those who are part of those sub-groups, at the least they know that their status as a protected class is not as likely to be held against them in a decision, and that they have someone who would call it out if it were.

In which case you are saying "Discriminate all you want against that WASP dude over there". Affirmative Action for Affirmative Action's sake is WRONG. It's just as bad to discriminate FOR someone as AGAINST someone. Choose the best candidate, PERIOD, without regard to race, color, gender, religion, sexual orientation, age, political persuasion, etc.

This may "seem" like the best idea, but it is not always the common practice. I've personally seen a company that was NOT hiring terminate a few employees just to hire several minorities, in order to protect themselves against a possible lawsuit. I've no idea if someone attempting to get a job threatened to sue or not, I just remember it happening.

Choosing the best candidate isn't always the option when you are dealing with politics and lawsuit defense.

In line with that, I think having additional perspectives on a Court adds to the overall competency of the bench. Were there qualified male judges who could have been nominated instead of Sandra Day O'Connor? Sure, in particular either Richard Posner or Frank Easterbrook from the 7th Circuit would have been excellent choices for Reagan to pick, and one could reasonably argue either one of them was the "best candidate" at the time. Except they weren't, because the addition of a woman to the Supreme Court meant that the Supreme Court became more representative of the population, and added a perspective and insights that traditionally were not present on that bench. The fact that O'Connor was a woman was a factor that made her appealing as a nominee.

Agreed. How odd it is that we have 156 straight justices on the court of appeals, and yet people cry discrimination when one gay justice is nominated! Just going on random demographics there ought to be five or six.

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Now, I'll grant that given the jurisdiction of the Federal Circuit, there are probably few instances where Hughes' sexual orientation will have much bearing at all on his evaluation of a case.

It's important to remember that everyone has a sexual orientation (and a race, and a religion, and so on). This came up in the Prop 8 case, most notably; the press and courts took the "issue" of Walker's sexuality fairly seriously. I can't imagine that if the plaintiffs had opposed a married heterosexual judge it would have been given nearly as much credence.

Both seem like interesting and informed picks. I also agree with the attempt at diversity, provided qualifications are the same. Diversity in appointments is a great way to help improve services offered by having judges who represent the community they serve. Having a gay justice(or a black, hispanic, female, etc) helps raise confidence in the system for those who are part of those sub-groups, at the least they know that their status as a protected class is not as likely to be held against them in a decision, and that they have someone who would call it out if it were.

In which case you are saying "Discriminate all you want against that WASP dude over there". Affirmative Action for Affirmative Action's sake is WRONG. It's just as bad to discriminate FOR someone as AGAINST someone. Choose the best candidate, PERIOD, without regard to race, color, gender, religion, sexual orientation, age, political persuasion, etc.

That is actually not what I said at all. I said that if all other issues are equal, if the two candidates are equally competent for the task at hand, that selecting the individual from the protected class is the right decision until the courts are more accuratly representative of the general population. As I stated, it builds confidence in the plaintiffs in a case, and competence among the judiciary which gains the insight of those involved in cases they oversee.

I did not endorse selecting an inferior candidate simply because of their class status. That would be discrimination, of course. And counter productive.

Both seem like interesting and informed picks. I also agree with the attempt at diversity, provided qualifications are the same. Diversity in appointments is a great way to help improve services offered by having judges who represent the community they serve. Having a gay justice(or a black, hispanic, female, etc) helps raise confidence in the system for those who are part of those sub-groups, at the least they know that their status as a protected class is not as likely to be held against them in a decision, and that they have someone who would call it out if it were.

In which case you are saying "Discriminate all you want against that WASP dude over there". Affirmative Action for Affirmative Action's sake is WRONG. It's just as bad to discriminate FOR someone as AGAINST someone. Choose the best candidate, PERIOD, without regard to race, color, gender, religion, sexual orientation, age, political persuasion, etc.

This may "seem" like the best idea, but it is not always the common practice. I've personally seen a company that was NOT hiring terminate a few employees just to hire several minorities, in order to protect themselves against a possible lawsuit. I've no idea if someone attempting to get a job threatened to sue or not, I just remember it happening.

Choosing the best candidate isn't always the option when you are dealing with politics and lawsuit defense.

What evidence do you have that the motivation was what you state? How do you know that the people let go did not have performance problems you were not aware of? How do you know that the candidates in question were not qualified or more than qualified than those they replaced? You state that you have no idea if any job hunter was threatening.

Look up confirmation bias. If a group of people were let go, and their replacements seemed to be people of color, and you believed that companies actually do what you stated here, your mind would naturally draw connections to support the worldview you already believe. That does not make it true, however.

BTW, the law does not work like you seem to think it does. You cannot sue a company over being declined for a job unless you actually have evidence of discrimination based on a protected factor. Unless the company recruiting department is run by complete morons, that is incredibly difficult to prove which is why few such lawsuits ever occur(and those that do tend to be against government contractors where there are much more stringent federal standards applied). Furthermore, even if a company does discriminate it is not necessarily illegal, private entities retain the right to hire who they see fit, even if their hiring criteria are bigoted, sexist or homophobic.

Both seem like interesting and informed picks. I also agree with the attempt at diversity, provided qualifications are the same. Diversity in appointments is a great way to help improve services offered by having judges who represent the community they serve. Having a gay justice(or a black, hispanic, female, etc) helps raise confidence in the system for those who are part of those sub-groups, at the least they know that their status as a protected class is not as likely to be held against them in a decision, and that they have someone who would call it out if it were.

In which case you are saying "Discriminate all you want against that WASP dude over there". Affirmative Action for Affirmative Action's sake is WRONG. It's just as bad to discriminate FOR someone as AGAINST someone. Choose the best candidate, PERIOD, without regard to race, color, gender, religion, sexual orientation, age, political persuasion, etc.

This may "seem" like the best idea, but it is not always the common practice. I've personally seen a company that was NOT hiring terminate a few employees just to hire several minorities, in order to protect themselves against a possible lawsuit. I've no idea if someone attempting to get a job threatened to sue or not, I just remember it happening.

Choosing the best candidate isn't always the option when you are dealing with politics and lawsuit defense.

What evidence do you have that the motivation was what you state? How do you know that the people let go did not have performance problems you were not aware of? How do you know that the candidates in question were not qualified or more than qualified than those they replaced? You state that you have no idea if any job hunter was threatening.

Look up confirmation bias. If a group of people were let go, and their replacements seemed to be people of color, and you believed that companies actually do what you stated here, your mind would naturally draw connections to support the worldview you already believe. That does not make it true, however.

BTW, the law does not work like you seem to think it does. You cannot sue a company over being declined for a job unless you actually have evidence of discrimination based on a protected factor. Unless the company recruiting department is run by complete morons, that is incredibly difficult to prove which is why few such lawsuits ever occur(and those that do tend to be against government contractors where there are much more stringent federal standards applied). Furthermore, even if a company does discriminate it is not necessarily illegal, private entities retain the right to hire who they see fit, even if their hiring criteria are bigoted, sexist or homophobic.

To be honest, it isn't confirmation bias. It is NOT my worldview that this is a common occurrence. Less qualified people were hired, but in the end it may have been more about money spent on payroll than anything. Our HR department was well known to be extremely ruthless in all things, which is part of the reason I'm no longer working for the aforementioned company. (No, I wasn't one of the people terminated).

If you really want to know how things work when it comes to Affirmative Action, just take a look at doctors. http://alfin2100.blogspot.com/2012/02/t ... ction.htmlI'm not implying that this is the end all, be all of every company, but I cannot put it past "some" entities to wield this as a shield against possible litigation. I never said this was about how the law works or does not work.

What bearing does someone's sexual orientation have on whether or not they are fit to be on a patent appeals court?

Well it allows the Obama administration to get a "First", which in reality is as useful as typing First! for the first comment on a new article; but Democrats seem to eat it up, so he plays to his base.

To be honest, it isn't confirmation bias. It is NOT my worldview that this is a common occurrence. Less qualified people were hired, but in the end it may have been more about money spent on payroll than anything. Our HR department was well known to be extremely ruthless in all things, which is part of the reason I'm no longer working for the aforementioned company. (No, I wasn't one of the people terminated).

You just admitted that it likely was not due to any affirmative action issue and had to do with salaries. I'm not sure what to say except that this is exactly what I'm talking about. The motives you saw were based on your biases rather than reality, which is that it likely was just a cost cutting move(you want real cynicism? Minorities tend to make significantly less for the same jobs, experience and competence. They might have hired minorities because they were more exploitable. Nice affirmative action there..).

I am not going to do the full teardown there, but he massively abuses numbers, and looking at his other posts(especially on climate change) he is a poster boy for selection and confirmation bias. You just sent me to evidence of exactly what I am trying to explain to you.

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I'm not implying that this is the end all, be all of every company, but I cannot put it past "some" entities to wield this as a shield against possible litigation. I never said this was about how the law works or does not work.

It matters if the law works the way you state if you are choosing to use a legal argument to defend your position.

What bearing does someone's sexual orientation have on whether or not they are fit to be on a patent appeals court?

None, but that doesn't mean there isn't value in having an openly gay person occupying such a position. Jackie Robinson's skin color had no bearing on his ability to play baseball, but his entry into the highest echelon of that sport was nonetheless an important development for American society.

That is actually not what I said at all. I said that if all other issues are equal, if the two candidates are equally competent for the task at hand, that selecting the individual from the protected class is the right decision until the courts are more accuratly representative of the general population. As I stated, it builds confidence in the plaintiffs in a case, and competence among the judiciary which gains the insight of those involved in cases they oversee.

I did not endorse selecting an inferior candidate simply because of their class status. That would be discrimination, of course. And counter productive.

I agree with what you're saying here, but it should be pointed out that homosexuality is not a protected class. Therefore those restrictions/limitations/benefits (however you choose to view it) don't apply.

That is actually not what I said at all. I said that if all other issues are equal, if the two candidates are equally competent for the task at hand, that selecting the individual from the protected class is the right decision until the courts are more accuratly representative of the general population. As I stated, it builds confidence in the plaintiffs in a case, and competence among the judiciary which gains the insight of those involved in cases they oversee.

I did not endorse selecting an inferior candidate simply because of their class status. That would be discrimination, of course. And counter productive.

I agree with what you're saying here, but it should be pointed out that homosexuality is not a protected class. Therefore those restrictions/limitations/benefits (however you choose to view it) don't apply.

1) In many states they are2) Nationally they certainly should be

We should have put blacks on high courts long before we made them a protected class. Women too. Your right though, I should not have specified 'protected'.

We should have put blacks on high courts long before we made them a protected class. Women too. Your right though, I should not have specified 'protected'.

Once again, I agree. I believe there's precedent at the state level for existing gender equality law to cover sexuality. Unless I'm mistaken that's the argument that granted marriage equality in Iowa. So we may not need to create a new protected class to cover these instances, just expand the interpretation of one of the existing protected classes.

In any case, being "first" in this situation is just a curiosity. There are plenty of gay judges throughout the judiciary. Clearly this guy is qualified and there's no need to focus on his sexuality.